GOOD SAMARITAN LEGISLATION

The Mississippi Chapter of the American Institute of Architects seeks to train architects and structural/civil engineers (A/E’s) to serve as second responders in an emergency situation under the management of professional emergency responders.

Architects and engineers are obligated under their respective licensure board rules of professional conduct to protect public health, safety, and welfare. In times of natural disasters or other catastrophic events, architectural and engineering expertise and skills are needed to provide structural, mechanical, electrical, or other architectural/engineering services to determine the integrity of structures, buildings, piping, or other systems. Architects and professional engineers are often called upon to voluntarily assist their communities, states, and the nation in these times of crisis.

Architects and engineers, however, may face substantial liability exposure when performing voluntary services (see questions below). Because of A/E’s exposure to professional liability, AIA/MS is pursuing legislation to protect them from civil litigation for volunteer services rendered in an emergency.

Why is this legislation being requested?

After a disaster occurs, A/E’s could help emergency management officials assess damaged buildings.

A/E’s have a greater exposure to being sued in their area of expertise (i.e. buildings) than ordinary citizens. They can be sued for things they may have had nothing to do with, like pre-­existing asbestos or mold.

Therefore, A/E’s seek the same kind of legal protection that is given to doctors who provide emergency medical assistance. Building officials and emergency responders have similar protection from civil litigation.

Good Sam legislation would remove the fear that A/E’s may have when volunteering their professional services. It would encourage more volunteers, and would allow them to do their job better under very stressful circumstances. A/E volunteers help the emergency officials in charge of managing a disaster. A/E volunteers help citizens and businesses get back on their feet. A/E volunteers can help the State of Mississippi in whatever federal reimbursement may be granted.

Why do you want to do this?

A/E’s want to help, just like anybody else. It’s volunteerism, as simple as that.

A/E’s have years of professional training and experience with buildings. A/E’s can give disaster officials much needed help so that the officials can get their jobs done better. A/E’s would only work under the supervision and management of the authority of professional disaster officials. We are requesting a Memorandum of Understanding with the Mississippi Emergency Management Agency, which would govern the activities of volunteer A/E professionals.

Why do you think you need this protection?

No one is perfect. Even the best doctor or A/E can make a mistake. A disaster situation can be confusing and chaotic. A disaster situation may require that A/E’s make hasty decisions. Even with the sincere best efforts of volunteer professionals, the situation itself may help cause mistakes.

Sometimes buildings may look OK from the outside but they may conceal hidden problems. Those problems may develop into more serious, even life-­threatening, situations during or after investigation.

Sometimes people get blamed for things they did not do, or had no involvement with at all. Some of our older buildings may have problems like asbestos or mold. Some building owners may think that a volunteer A/E who assesses such a building should be able to know about things they cannot see. A/E’s do not have X-­ray vision. A/E’s may be an easy target for being blamed for pre-existing conditions.

Sometimes people believe they have suffered damages because of the actions of others. We live in a litigious world. Tort law, which involves financial compensation for damages, is great in helping to make safer toys for our children and safer cars for us to drive. But tort law is not good when it creates fear in A/E professionals and prevents them from volunteering their services.

Do you believe that you would be sued?

Yes, it is possible. It has happened before in other states.

After the September 11, 2001, World Trade Center disaster, structural engineers who volunteered their professional services in assessing the safety conditions of the site were sued for allowing rescuers to be exposed to air that was contaminated with asbestos or other hazardous materials. Even though no damages were awarded, the engineers had to pay for their own legal defense over a long time.

Because of that awful experience, about 300 volunteer architects and engineers who wanted to assist after hurricane Sandy were advised to NOT offer their services because there was no protection for them. That is a lose–lose situation. As a result the New York legislature is currently working on Good Sam legislation.

Does this benefit you or others?

This legislation may seem to be a benefit to A/E’s, but in reality the benefit is to the emergency management officials and the State of Mississippi. It helps business owners get back on their feet sooner and citizens to return to their homes sooner. It helps expedite the recovery process.

It may also provide a financial benefit to Mississippi. In a declared disaster, where FEMA is involved, the monetary equivalent of fees that would have been charged for volunteers’ hours is included in the formula for federal reimbursement to the state. The State of Mississippi would not pay for the volunteer work, but the state would be eligible to receive funds for that volunteer professional time spent.

Do you have insurance for this?

The professional liability Errors and Omissions insurance, which architects and engineers typically carry, may or may not cover volunteer services. Those volunteer services would be rendered outside of the normal contractual relationship between a building owner and a professional that is insurable. It is still a grey area of insurance coverage that we are trying to resolve. Ironically, having this kind of insurance gives some people the impression that A/E’s have “deep pockets” and therefore makes them more vulnerable to lawsuits.

Insurers generally discourage professionals from offering their services without compensation and exposing themselves to potential liability. There are not many (if any) examples of professional insurance strictly for volunteer work. If there is coverage available, is it fair to ask a volunteer professional to buy more insurance for doing volunteer work that benefits the state, its citizens and businesses, and its emergency professionals?

If A/E’s are sued they may still have to pay for the cost of their own legal defense.

If an A/E is sued for more than his or her insurance limit, he or she may be in financial jeopardy.

Following the devastation on the Mississippi Gulf Coast caused by Hurricane Katrina in 2005, Scott served as a volunteer making several trips to the affected areas to preform building damage assessments. Since that time, Scott has become a Cal OES certified SAP Evaluator and Cal OES SAP Trainer. He has served as the AIA/Mississippi Disaster Assistance Committee state coordinator for eight years and was appointed to AIA National’s Disaster Assistance Committee in 2017, serving as Vice-Chair in 2018. In December of 2018, he was appointed Chair of the Disaster Assistance Committee.

Scott has instructed architects, engineers and building officials in the Cal OES SAP Training program in Louisiana, Texas, Mississippi, New York and Florida. These sessions have increased the number of SAP trained evaluators that are able to assist those in need following a declared disaster. He has also served on panel discussions regarding disaster preparedness at the CACE conference in Philadelphia, PA and A’17 in Orlando, FL.

Mississippi is the only state in the southeast and one on only a few nationwide that does not have a Good Samaritan law protecting architects and engineers from liability when volunteering to provide safety assessments following a declared disaster at the request of the State or authority having jurisdiction. Scott is in support of a Good Samaritan law that would better enable us to respond in the next disaster.

HISTORYThis bill has been introduced in the legislature previously but has not been brought for a vote. Click the links below for more information.

2020: HB30 introduced by Representative Joel Bomgar; referred to Judiciary A (current as of 2/12/20)

The Good Samaritan Compendium discusses the advantages of Good Samaritan laws, details each state’s Good Samaritan protections for architects, and includes AIA model legislation for those interested in understanding and advocating for the adoption of such legislation by states. Related, but not included are laws pertaining to the portability of licensure. Architects licensed within the state for which the law is enacted are typically only eligible to provide volunteer disaster assistance. Some jurisdictions will allow unlicensed professionals to volunteer so long as they work alongside a licensed professional.